Virgin territory for ISPs

Bill Thompson believes Virgin Media has decided it likes record companies more than its customers.

The chances are that I’ll be getting a letter from my internet service provider (ISP) in the next few weeks telling me that they’ve been watching my network activity closely and think I’ve been breaking the law.

Virgin Media, who used to be called NTL before they acquired Virgin Mobile and turned themselves into a “four-play” media company, has announced that it is working with record industry lobby group, the British Phonographic Industry, to write to customers whose network connection seems to have been used to download unlicensed content.

Like almost every technically-competent internet user of my acquaintance I’ve used BitTorrent to get my hands on a copy of a TV show that I missed, taking advantage of the kindness of strangers who bothered to record and upload the shows for fans because the companies that make and broadcast them choose not to.

However I also go out and buy the DVD box sets as soon as I can.

And I don’t feel like a criminal, because I don’t see why downloading a copy of a show that someone else has recorded should be seen as a breach of copyright while recording it myself onto a DVD is not.

According to the BPI’s press release the letters are part of a “new education campaign to help Virgin Media’s broadband customers safely download music from the internet and avoid the risk of legal action”.

At the moment it’s hard to use BitTorrent anonymously, although since the service itself is entirely legal and legitimate there should be no need to do so

Bill Thompson

But from the outside it seems more like a softening up move to get Virgin customers used to the fact that they are being observed by their ISP. And I predict Virgin will be happy to help the BPI identify individual account holders so that they can be threatened with prosecution over their downloading activities later on.

The move follows a campaign by the BPI to persuade UK ISPs to adopt a “three strikes and you’re out” approach to downloaders, where they would have their network connection terminated if they were found to be downloading unlicensed material after two warnings.

This hasn’t happened, not least because the two sides can’t agree who would pay the costs of monitoring or sending letters, or who would be liable for the inevitable lawsuits when innocent users decided that arbitrary disconnection without due process was likely to prove unpopular in the courts.

They should be careful who they sue. Researchers at the University of Washington recently announced that they had managed to fool US film industry body the MPAA into sending formal legal notices to three laser printers, claiming that they had been downloading copies of Iron Man and Indiana Jones.

Fake IP addresses

They had set up their network to fake the relevant internet addresses and the software used by the MPAA was unable to spot this.

Virgin will be on slightly firmer ground because it’s their network, and although some users may claim that they have open wireless networks that could have been used by anyone the buck will stop with the account holder.

There continues to be concerted pressure from established content providers in film, television and music, hoping that aggressive enforcement of copyright law will ensure that their 20th Century business models survive against the onslaught of the network society.

I believe it’s a doomed enterprise, as the growth of a fast internet coupled with the ability to make perfect copies of digital content means that all of the assumptions that underpin film studios, TV broadcasters and record companies have been stripped away, leaving them flailing around, threatening and suing the people who should be their best customers and hoping to persuade politicians to pass new laws to give them special privileges online.

As more licensed download services become available, many offering songs without usage restrictions enforced by digital rights management technologies, the wholesale copying of unlicensed copies becomes a lot less defensible.

But the habits that grew up when the music industry was simply unwilling to accept that downloading was the way forward – and the technologies that support those habits – will be hard to break.

Heavy downloaders

Evidence that heavy downloaders are also heavy music purchasers doesn’t seem to have made any difference to the BPI’s approach either, and instead of finding new business models they hold on to the old ways of working.

It gets more complicated because the larger ISPs in the UK, Virgin, Sky and BT, are also content providers with their own interests in shoring up the current copyright regime.

Virgin don’t want programmes they have paid to distribute ending up on the internet for people like me to download, but by acting in concert with trade bodies they can appear socially responsible rather than simply serving their own broader interests.

The spaces within which we can live unobserved are constantly diminishing, as both public and private sector agencies link their databases together or co-operate to ensure that nothing we do goes unremarked.

We need a space for experimentation, where we can test the limits of old laws and explore how they might be altered in future, but once ISPs decide that they are no longer neutral carriers of bits and choose to ally themselves with the content industry then we lose another sliver of freedom.

At the moment it’s hard to use BitTorrent anonymously, although since the service itself is entirely legal and legitimate there should be no need to do so.

The moves by Virgin and other ISPs will simply spur the development of new ways of sharing files, just as the clampdown on Napster lead directly to the development of the current generation of peer to peer networks.

Virgin has just given its thousands of users an incentive to explore these new tools in order to confuse their administrators. After all, we pay them to move my bits around, not to go running to the record company if they suspect us of downloading unlicensed music.

Bill Thompson is an independent journalist and regular commentator on the BBC World Service programme Digital Planet.